On 15 May 2020, the German Federal Council approved a new regulation by the Federal Ministry of Food and Agriculture. The regulation provides for a ban of sweetened baby and infant tea and new information obligations for such products.

Ban on sugar

According to the Federal Ministry of Food and Agriculture it is necessary to prohibit baby and infant tea containing sugar, honey, malt extract or other syrups or thick juices obtained from vegetable raw materials, fruit juice, fruit juice powder or fruit nectar.

The Federal Council also approved a recommendation of its Committee for Agricultural Policy and Consumer Protection requesting the Federal Government to consider an extension of the ban to include other sweeteners, e.g. stevia and maltodextrin.

New information obligations

In addition, manufacturers should add to the packaging of the teas a statement advising that teas for babies and infants should not be sweetened by the consumer with sugar or other sweetening additives. Further, the packaging should indicate at which age the tea can be used. This age must not be less than four months of age.

Health protection as motive

The Federal Ministry of Food and Agriculture’s motives are referring to studies associating the consumption of sugar in baby and infant age with the consumption of sugar in later childhood and adolescence. The ministry expects the new measures to make a significant contribution to reducing sugar consumption by babies and infants and thus to protect their (future) health (counteracting obesity and dental caries etc.).

Almost 30 years ago, warnings in connection with infant tea products were discussed in an important decision by the German Supreme Court (judgment of 12 November 1991, case ref. VI ZR 7/91). The Supreme Court held that the manufacturer has a duty to warn about potential damage caused by dental caries due to the “nursing bottle syndrome” – a consequence of teeth having been flushed by a sweet liquid over a longer period of time – in an explicit way. A second judgment by the Supreme Court in 1994 (case ref. VI ZR 41/93) in connection with such products clarified that a manufacturer has to adapt content and scope of instructions to the least informed and thus most vulnerable group of product users.

Compliance with European laws?

It is questionable if the measures adopted are compliant with EU laws.

It is more than difficult to reconcile this German special regulation with the European principles of the free movement of goods and mutual recognition as it clearly impedes the free movement of goods within the EU – and therewith clearly contradicts to the aim of the Mutual Recognition Regulation (EU) 2019/515.

Moreover, baby and infant tea products fall within the broad definition of complementary foods, which is regulated by primarily applicable EU law (Art. 2 para. 2 lit. f) Regulation (EU) 609/2013). At the latest when a – so far missing – European implementing regulation comes into force, the German special regulation is likely to become obsolete. The adoption of a delegated regulation on complementary foods at European level is, however, not be expected in the near future, so that the German legislator could argue that a national regulation in the meantime is justified for the protection of health.

Outlook

From the manufacturer’s point of view, it is desirable that the EU lawmakers adopt a regulation in the near future in order to prevent different national regulations by the Member States.

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